Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) (No 2)

The Owners of Strata Plan No 30791 (the Appellants) appealed to the Court of Appeal of the Supreme Court of New South Wales against decisions made in proceedings involving Southern Cross Constructions (ACT) Pty Ltd (in liquidation) (the First Respondent) and another party. The dispute concerned claims for damages arising from alleged negligence.

The Court was required to determine, among other things, whether the Appellants' entitlement to damages should be adjusted to reflect the concurrent wrongdoing of an entity not a party to the proceedings. Additionally, the Court considered the principles governing party/party costs in an appeal involving multiple parties, particularly where the appellant is partially successful and where allegations of concurrent wrongdoing were not pursued at the hearing.

The Court reasoned that the apportionment of responsibility for the Appellants' loss should take into account the concurrent wrongdoing of the non-party, as this was a relevant factor in assessing the Appellants' overall entitlement to damages. Regarding costs, the Court applied the general rule that costs follow the event but exercised its discretion to reduce the costs awarded to the Appellants commensurate with the hearing time spent on the successful aspects of their appeal. The Court also considered the implications of the Appellants not pursuing their concurrent wrongdoing allegations at the hearing when determining cost orders against the unsuccessful respondents.

The Court ordered that the Appellants file and serve Short Minutes of Orders within 14 days to give effect to its reasons. Leave was granted for parties to apply if any dispute arose regarding the appropriate orders, and liberty to apply was reserved in the event that it became necessary to consider settlement sums received by the Appellants.